[Federal Register Volume 62, Number 179 (Tuesday, September 16, 1997)]
[Rules and Regulations]
[Pages 48449-48455]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-24440]



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  Federal Register / Vol. 62, No. 179 / Tuesday, September 16, 1997 / 
Rules and Regulations  

[[Page 48449]]


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MERIT SYSTEMS PROTECTION BOARD

5 CFR Part 1201


Practices and Procedures

AGENCY: Merit Systems Protection Board.

ACTION: Interim rule; request for comments.

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SUMMARY: The Merit Systems Protection Board is amending its rules of 
practice and procedure for original jurisdiction cases to permit 
assignment of certain of these cases to a judge other than the 
Administrative Law Judge, to provide for delegation of authority to the 
Administrative Law Judge to decide Special Counsel stay requests, and 
to provide for judges to issue initial decisions, rather than 
recommended decisions, in Special Counsel complaints (including alleged 
violations of the Hatch Act) and proposed actions against 
administrative law judges. Certain other changes are made to reorganize 
and update the rules governing adjudication of original jurisdiction 
cases for the benefit of the Board's customers. These changes are the 
result of a recommendation made by the Board's Reinventing Government 
II (REGO II) Task Force and a review by the Board of its delegations of 
authority to decide original jurisdiction cases. They are intended to 
streamline the Board's adjudicatory procedures so that it can manage 
its original jurisdiction caseload more efficiently and effectively.

DATES: Effective date September 16, 1997. Submit written comments on or 
before November 17, 1997.

ADDRESSES: Send comments to Robert E. Taylor, Clerk of the Board, Merit 
Systems Protection Board, 1120 Vermont Avenue, NW, Washington, DC 
20419. Comments may be sent via e-mail to [email protected].

FOR FURTHER INFORMATION CONTACT: Robert E. Taylor, Clerk of the Board, 
(202) 653-7200.

SUPPLEMENTARY INFORMATION: In response to the second phase of the 
Administration's Reinventing Government initiative (REGO II), the 
Chairman of the Merit Systems Protection Board appointed a REGO II Task 
Force to review all Board operations and to make recommendations for 
changes in organization, functions, and procedures that would enable 
the agency to continue performing its functions effectively at the 
reduced budget and staffing levels expected through fiscal year 2000. 
One recommendation of the Task Force with respect to the Board's 
adjudicatory function, subsequently approved by the Board, was that the 
regulations for original jurisdiction cases be amended to permit the 
issuance of an initial decision in Special Counsel complaints and 
proposed actions against administrative law judges, subject to a 
petition for review of the initial decision by the Board.
    The Board also reviewed its delegations of authority to decide 
original jurisdiction cases and determined that it should have the 
flexibility to assign to any of its judges those cases that are not 
required by law to be heard by an administrative law judge. In addition 
to making these changes, which are intended to enable the Board to 
manage its caseload more efficiently and effectively, the Board is 
taking this opportunity to reorganize and update its original 
jurisdiction regulations for the benefit of its customers.
    This amendment to 5 CFR part 1201 revises the Board's procedures 
for the adjudication of original jurisdiction cases set forth in 
subpart D. The following are the principal changes:
    (a) Subpart D has been reorganized so that, following an 
introductory section, there are separate, self-contained provisions 
setting forth the procedures for each kind of original jurisdiction 
case covered by the subpart. The introductory section, 1201.121, sets 
forth the jurisdictional scope of subpart D and the applicability of 
other subparts of part 1201. The procedures for each kind of original 
jurisdiction case then are set forth in the following sections: 
1201.122 through 1201.127 for Special Counsel disciplinary action 
complaints (including Hatch Act cases), 1201.128 through 1201.133 for 
Special Counsel corrective action complaints, 1201.134 through 1201.136 
for Special Counsel stay requests, 1201.137 through 1201.142 for 
actions against administrative law judges, and 1201.143 through 
1201.145 for informal hearings in proposed removals of career 
appointees from the Senior Executive Service for performance reasons. 
For each kind of case, the sections have been rearranged to follow the 
chronology of a case as it proceeds through filing of the complaint or 
request, answer, adjudication, decision, and review (if any). The 
provisions on protective orders are moved to the end of the subpart, 
Secs. 1201.146 through 1201.148, and are revised to clarify that 
protective orders may be issued in connection with any pending original 
jurisdiction proceeding, as well as during the course of an 
investigation by the Special Counsel.
    (b) The provisions on assignment of cases to an administrative law 
judge for hearing (formerly in Secs. 1201.129 and 1201.135) have been 
replaced by new provisions in Secs. 1201.125 and 1201.140 stating that 
Special Counsel disciplinary action complaints (including Hatch Act 
cases) and proposed agency actions against administrative law judges 
will be heard by an administrative law judge. Because a hearing before 
an administrative law judge is required by law in these kinds of cases 
(see 5 U.S.C. 1215(a)(2)(C) and 5 U.S.C. 554(a)(2)), all such cases 
will continue to be assigned to the Board's Administrative Law Judge at 
headquarters. New provisions have been added at Secs. 1201.131 and 
1201.144 to provide the Board flexibility to assign Special Counsel 
corrective action complaints and Senior Executive Service performance-
based removal cases to any of its judges, as defined at Sec. 1201.4(a). 
That section defines ``judge'' as: ``Any person authorized by the Board 
to hold a hearing or to decide a case without a hearing, including an 
attorney-examiner, an administrative judge, an administrative law 
judge, the Board, or any member of the Board.'' Under these new 
provisions, therefore, a Special Counsel corrective action complaint or 
a Senior Executive Service performance-based removal case can be 
assigned to a judge in one of the Board's regional or field offices or 
to a judge

[[Page 48450]]

(including an administrative law judge) at the Board's headquarters.
    (c) The provisions for Special Counsel requests for stays of 
personnel actions have been revised to provide that any member of the 
Board may delegate to an administrative law judge the authority to 
decide an initial stay request. See Sec. 1201.134.
    (d) The provisions on filing Special Counsel corrective action 
complaints and Senior Executive Service performance-based removal cases 
have been revised to require that subsequent pleadings be filed with 
the office where the judge to whom the case is assigned is located. See 
Secs. 1201.128 and 1201.143. When a case is assigned to a judge in a 
regional or field office, an acknowledgment order will be issued 
directing that subsequent pleadings be filed with the office where the 
judge is located.
    (e) The provisions on filing original jurisdiction cases have been 
revised to require that telephone and facsimile numbers, as well as 
names and addresses, be provided on a certificate of service. See 
Secs. 1201.122, 1201.128,
1201.134, 1201.137, and 1201.143.
    (f) The provisions on serving copies of initial complaints and 
requests in original jurisdiction cases have been revised to require 
that service be accomplished by the filer--the Special Counsel, the 
agency proposing an action against an administrative law judge, or the 
career appointee in the Senior Executive Service who is requesting an 
informal hearing. See Secs. 1201.122, 1201.128, 1201.134, 1201.137, and 
1201.143. Previously, service in original jurisdiction cases was 
accomplished by the Clerk of the Board (see former Sec. 1201.122(b)). 
The provisions on serving copies of subsequent pleadings are unchanged.
    (g) New provisions have been added to require the Clerk of the 
Board to furnish a copy of the applicable Board regulations to each 
respondent (other than a Federal, State, or local government agency) 
named in a Special Counsel disciplinary action complaint or a proposed 
agency action against an administrative law judge. Furthermore, the 
Clerk must advise each respondent of his or her procedural rights and 
the Board's requirements regarding the time limit for filing a response 
to the complaint and the content of the response. See Secs. 1201.124 
and 1201.139.
    (h) The provision on contents of a Special Counsel disciplinary 
action complaint, Sec. 1201.123, has been revised to describe more 
specifically the prohibited conduct and violations of law that can form 
the basis for a disciplinary action complaint, and to eliminate an 
obsolete provision. As revised, the provision states that a 
disciplinary action may be brought against an employee alleged to have 
committed a prohibited personnel practice, to have committed a 
violation described in 5 U.S.C. 1216, to have violated the Hatch Act 
prohibitions applicable to State and local government employees under 5 
U.S.C. 1505, or to have knowingly and willfully refused or failed to 
comply with an order of the Board. The reference to the Federal 
Employees Flexible and Compressed Work Schedule Act (formerly at 
Sec. 1201.123(a)(4)) has been deleted as no longer necessary. A 
corresponding revision has been made in Sec. 1201.126 to delete the 
provisions regarding discipline the Board can impose under the Federal 
Employees Flexible and Compressed Work Schedule Act (formerly at 
Sec. 1201.126(e)).
    (i) A new provision has been added that provides any person on 
whose behalf the Special Counsel brings a corrective action complaint 
the right to request intervention in the Board proceeding under the 
provisions of Sec. 1201.34. The current language regarding the right of 
any person alleged to have been the subject of any prohibited personnel 
practice alleged in the complaint to make written comments is revised 
to clarify that this right applies regardless of whether such a person 
requests and is granted intervenor status. The current language 
regarding the rights of the Special Counsel, the agency involved, and 
the Office of Personnel Management to provide oral or written comments 
is unchanged. See Sec. 1201.130.
    (j) New provisions have been added permitting judges to issue 
initial decisions in Special Counsel corrective action complaints, 
Special Counsel disciplinary action complaints (with one exception, 
described in paragraph (k) below), and proposed agency actions against 
administrative law judges. Such initial decisions will be subject to a 
petition for review by the Board. See Secs. 1201.125, 1201.131, and 
1201.140. These provisions replace the procedure in the former 
Sec. 1201.129, which provided for an administrative law judge to issue 
a recommended decision, subject to exceptions and a final decision by 
the Board.
    (k) In a Hatch Act case involving a Federal or District of Columbia 
government employee, where an administrative law judge determines that 
removal of the employee is not warranted, he or she is without 
statutory authority to order a lesser penalty. The statute provides 
that the Board may impose a lesser penalty of not less than a 30-day 
suspension only if the Board finds ``by unanimous vote'' that the 
violation does not warrant removal. 5 U.S.C. 7325. Therefore, the 
regulations provide at Sec. 1201.125(c) that in such a case, the 
administrative law judge will issue a recommended decision, subject to 
exceptions and a final decision by the Board. The procedures applying 
in this instance are the same as those under the former Sec. 1201.129.
    (l) A new provision has been added to state the statutory right (at 
5 U.S.C. 1508) for an aggrieved party to obtain judicial review of a 
Board decision in a Hatch Act case involving a State or local 
government employee. See Sec. 1201.127(b).
    (m) In the provisions governing extension of a Special Counsel stay 
that has been granted, a new requirement has been added that the 
Special Counsel file any request for extension, along with its 
supporting brief, at least 15 days before the expiration date of the 
stay. A time limit of 10 days from the date of filing of the Special 
Counsel's brief is established for the filing of any agency response. 
See Sec. 1201.136(b). These changes are intended to ensure that there 
is sufficient time to decide a request for extension of a stay before 
the expiration date of the stay.
    (n) In the provisions governing extension of a Special Counsel stay 
that has been granted, the requirement that the Special Counsel provide 
periodic reports during the pendency of the stay (formerly at 
Sec. 1201.127(c)(3)) has been deleted. In its place has been added a 
requirement, reflecting current Board practice, that the agency ordered 
to stay a personnel action provide evidence of compliance with the stay 
order within five working days of the date of the order. See 
Sec. 1201.136(c).
    (o) A new section has been added to the provisions on ``Actions 
Against Administrative Law Judges'' to cover the situation in which a 
complaint is filed by an administrative law judge rather than an 
agency. In this situation, the administrative law judge may allege that 
the employing agency has interfered with the judge's qualified 
decisional independence so as to constitute a constructive removal or 
other action under 5 U.S.C. 7521 that has not been authorized by the 
Board. See Sec. 1201.142.
    The revised procedures in subpart D will be applied to original 
jurisdiction cases that are: (1) Pending on the effective date of this 
interim rule, except for cases pending before the Board on a 
recommended decision of an administrative law judge; (2) remanded by 
the Board to a judge on or after the effective date of this interim 
rule; and

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(3) filed on or after the effective date of this interim rule.
    The Board is publishing this rule as an interim rule pursuant to 5 
U.S.C. 1204(h).

List of Subjects in 5 CFR Part 1201

    Administrative practice and procedure, Civil rights, Government 
employees.

    Accordingly, the Board amends 5 CFR part 1201 as follows:

PART 1201--[AMENDED]

    1. The authority citation for part 1201 continues to read as 
follows:

    Authority: 5 U.S.C. 1204 and 7701, and 38 U.S.C. 4331, unless 
otherwise noted.

    2. Subpart D is revised to read as follows:
Subpart D--Procedures for Original Jurisdiction Cases

GENERAL

Sec.
1201.121  Scope of jurisdiction; application of subparts B, F, and 
H.

Special Counsel Disciplinary Actions

1201.122  Filing complaint; serving documents on parties.
1201.123  Contents of complaint.
1201.124  Rights; answer to complaint.
1201.125  Administrative law judge.
1201.126  Final decisions.
1201.127  Judicial review.

Special Counsel Corrective Actions

1201.128  Filing complaint; serving documents on parties.
1201.129  Contents of complaint.
1201.130  Rights; answer to complaint.
1201.131  Judge.
1201.132  Final decisions.
1201.133  Judicial review.

Special Counsel Requests for Stays

1201.134  Deciding official; filing stay request; serving documents 
on parties.
1201.135  Contents of stay request.
1201.136  Action on stay request.

Actions Against Administrative Law Judges

1201.137  Covered actions; filing complaint; serving documents on 
parties.
1201.138  Contents of complaint.
1201.139  Rights; answer to complaint.
1201.140  Judge; requirement for finding of good cause.
1201.141  Judicial review.
1201.142  Actions filed by administrative law judges.

Removal From the Senior Executive Service

1201.143  Right to hearing; filing complaint; serving documents on 
parties.
1201.144  Hearing procedures; referring the record.
1201.145  No appeal.

Requests for Protective Orders

1201.146  Requests for protective orders by the Special Counsel.
1201.147  Requests for protective orders by persons other than the 
Special Counsel.
1201.148  Enforcement of protective orders.

Subpart D--Procedures for Original Jurisdiction Cases

General


Sec. 1201.121  Scope of jurisdiction; application of subparts B, F, and 
H.

    (a) Scope. The Board has original jurisdiction over complaints 
filed by the Special Counsel seeking corrective or disciplinary action 
(including complaints alleging a violation of the Hatch Political 
Activities Act), requests by the Special Counsel for stays of certain 
personnel actions, proposed agency actions against administrative law 
judges, and removals of career appointees from the Senior Executive 
Service for performance reasons.
    (b) Application of subparts B, F, and H. (1) Except as otherwise 
expressly provided by this subpart, the regulations in subpart B of 
this part applicable to appellate case processing also apply to 
original jurisdiction cases processed under this subpart.
    (2) Subpart F of this part applies to enforcement proceedings in 
connection with Special Counsel complaints and stay requests, and 
agency actions against administrative law judges, decided under this 
subpart.
    (3) Subpart H of this part applies to requests for attorney fees or 
compensatory damages in connection with Special Counsel corrective and 
disciplinary action complaints, and agency actions against 
administrative law judges, decided under this subpart. Subpart H of 
this part also applies to requests for consequential damages in 
connection with Special Counsel corrective action complaints decided 
under this subpart.

Special Counsel Disciplinary Actions


Sec. 1201.122  Filing complaint; serving documents on parties.

    (a) Place of filing. A Special Counsel complaint seeking 
disciplinary action under 5 U.S.C. 1215(a)(1) (including a complaint 
alleging a violation of the Hatch Political Activities Act) must be 
filed with the Clerk of the Board.
    (b) Initial filing and service. The Special Counsel must file two 
copies of the complaint, together with numbered and tabbed exhibits or 
attachments, if any, and a certificate of service listing each party or 
the party's representative. The certificate of service must show the 
last known address, telephone number, and facsimile number of each 
party or representative. The Special Counsel must serve a copy of the 
complaint on each party or the party's representative, as shown on the 
certificate of service.
    (c) Subsequent filings and service. Each party must serve on every 
other party or the party's representative one copy of each of its 
pleadings, as defined by Sec. 1201.4(b). A certificate of service 
describing how and when service was made must accompany each pleading. 
Each party is responsible for notifying the Board and the other parties 
in writing of any change in name, address, telephone number, or 
facsimile number of the party or the party's representative.
    (d) Method of filing and service. Filing may be by mail, by 
facsimile, by commercial overnight delivery, or by personal delivery to 
the Clerk of the Board. Service may be by mail, by facsimile, by 
commercial overnight delivery, or by personal delivery to each party or 
the party's representative, as shown on the certificate of service.


Sec. 1201.123  Contents of complaint.

    (a) If the Special Counsel determines that the Board should take 
any of the actions listed below, he or she must file a written 
complaint in accordance with Sec. 1201.122 of this part, stating with 
particularity any alleged violations of law or regulation, along with 
the supporting facts.
    (1) Action to discipline an employee alleged to have committed a 
prohibited personnel practice, 5 U.S.C. 1215(a)(1)(A);
    (2) Action to discipline an employee alleged to have violated any 
law, rule, or regulation, or to have engaged in prohibited conduct, 
within the jurisdiction of the Special Counsel under 5 U.S.C. 1216 
(including an alleged violation by a Federal or District of Columbia 
government employee involving political activity prohibited under 5 
U.S.C. 7324), 5 U.S.C. 1215(a)(1)(B), 1216(a), and 1216(c);
    (3) Action to discipline a State or local government employee for 
an alleged violation involving prohibited political activity, 5 U.S.C. 
1505; or
    (4) Action to discipline an employee for an alleged knowing and 
willful refusal or failure to comply with an order of the Board, 5 
U.S.C. 1215(a)(1)(C).
    (b) The administrative law judge to whom the complaint is assigned 
may order the Special Counsel and the responding party to file briefs, 
memoranda, or both in any disciplinary action complaint the Special 
Counsel brings before the Board.


Sec. 1201.124  Rights; answer to complaint.

    (a) Responsibilities of Clerk of the Board. The Clerk of the Board 
shall furnish a copy of the applicable Board

[[Page 48452]]

regulations to each party that is not a Federal, State, or local 
government agency and shall inform such a party of the party's rights 
under paragraph (b) of this section and the requirements regarding the 
timeliness and content of an answer to the Special Counsel's complaint 
under paragraphs (c) and (d), respectively, of this section.
    (b) Rights. When the Special Counsel files a complaint proposing a 
disciplinary action against an employee under 5 U.S.C. 1215(a)(1), the 
employee has the right:
    (1) To file an answer, supported by affidavits and documentary 
evidence;
    (2) To be represented;
    (3) To a hearing on the record before an administrative law judge;
    (4) To a written decision, issued at the earliest practicable date, 
in which the administrative law judge states the reasons for his or her 
decision; and
    (5) To a copy of the administrative law judge's decision and 
subsequent final decision by the Board, if any.
    (c) Filing and default. A party named in a Special Counsel 
disciplinary action complaint may file an answer with the Clerk of the 
Board within 35 days of the date of service of the complaint. If a 
party fails to answer, the failure may constitute waiver of the right 
to contest the allegations in the complaint. Unanswered allegations may 
be considered admitted and may form the basis of the administrative law 
judge's decision.
    (d) Content. An answer must contain a specific denial, admission, 
or explanation of each fact alleged in the complaint. If the respondent 
has no knowledge of a fact, he or she must say so. The respondent may 
include statements of fact and appropriate documentation to support 
each denial or defense. Allegations that are unanswered or admitted in 
the answer may be considered true.


Sec. 1201.125  Administrative law judge.

    (a) An administrative law judge will hear a disciplinary action 
complaint brought by the Special Counsel.
    (b) Except as provided in paragraph (c)(1) of this section, the 
administrative law judge will issue an initial decision on the 
complaint pursuant to 5 U.S.C. 557. The applicable provisions of 
Secs. 1201.111, 1201.112, and 1201.113 of this part govern the issuance 
of initial decisions, the jurisdiction of the judge, and the finality 
of initial decisions. The initial decision will be subject to the 
procedures for a petition for review by the Board under subpart C of 
this part.
    (c) (1) In a Special Counsel complaint seeking disciplinary action 
against a Federal or District of Columbia government employee for a 
violation of 5 U.S.C. 7324, where the administrative law judge finds 
that the violation does not warrant removal, the administrative law 
judge will issue a recommended decision to the Board in accordance with 
5 U.S.C. 557.
    (2) The parties may file with the Clerk of the Board any exceptions 
they may have to the recommended decision of the administrative law 
judge. Those exceptions must be filed within 35 days after the date of 
service of the recommended decision.
    (3) The parties may file replies to exceptions within 25 days after 
the date of service of the exceptions, as that date is determined by 
the certificate of service.
    (4) No additional evidence will be accepted with a party's 
exceptions or with a reply to exceptions unless the party submitting it 
shows that the evidence was not readily available before the 
administrative law judge closed the record.
    (5) The Board will consider the recommended decision of the 
administrative law judge, together with any exceptions and replies to 
exceptions filed by the parties, and will issue a final written 
decision.


Sec. 1201.126  Final decisions.

    (a) In any action to discipline an employee, except as provided in 
paragraphs (b) or (c) of this section, the administrative law judge, or 
the Board on petition for review, may order a removal, a reduction in 
grade, a debarment (not to exceed five years), a suspension, a 
reprimand, or an assessment of civil penalty not to exceed $1,100. 5 
U.S.C. 1215(a)(3).
    (b) In any action in which the administrative law judge, or the 
Board on petition for review, finds under 5 U.S.C. 1505 that a State or 
local government employee has violated the Hatch Political Activities 
Act and that the employee's removal is warranted, the administrative 
law judge, or the Board on petition for review, will issue a written 
decision notifying the employing agency and the employee that the 
employee must be removed and not reappointed within 18 months of the 
date of the decision. If the agency fails to remove the employee, or if 
it reappoints the employee within 18 months, the administrative law 
judge, or the Board on petition for review, may order the Federal 
entity administering loans or grants to the agency to withhold funds 
from the agency as provided under 5 U.S.C. 1506.
    (c) In any Hatch Act action in which the administrative law judge, 
or the Board on petition for review, finds that a Federal or District 
of Columbia government employee has violated 5 U.S.C. 7324 and that the 
violation warrants removal, the administrative law judge, or the Board 
on petition for review, will issue a written decision ordering the 
employee's removal. If the administrative law judge determines that 
removal is not warranted, the judge will issue a recommended decision 
under Sec. 1201.125(c)(1) of this part. If the Board finds by unanimous 
vote that the violation does not warrant removal, it will impose 
instead a penalty of not less than 30 days suspension without pay. If 
the Board finds by majority vote that the violation warrants removal, 
it will order the employee's removal.


Sec. 1201.127  Judicial review.

    (a) An employee subject to a final Board decision imposing 
disciplinary action under 5 U.S.C. 1215 may obtain judicial review of 
the decision in the United States Court of Appeals for the Federal 
Circuit, except as provided under paragraph (b) of this section. 5 
U.S.C. 1215(a)(4).
    (b) A party aggrieved by a determination or order of the Board 
under 5 U.S.C. 1505 (governing alleged violations of the Hatch 
Political Activities Act by State or local government employees) may 
obtain judicial review in an appropriate United States district court. 
5 U.S.C. 1508.

Special Counsel Corrective Actions


Sec. 1201.128  Filing complaint; serving documents on parties.

    (a) Place of filing. A Special Counsel complaint seeking corrective 
action under 5 U.S.C. 1214 must be filed with the Clerk of the Board. 
After the complaint has been assigned to a judge, subsequent pleadings 
must be filed with the Board office where the judge is located.
    (b) Initial filing and service. The Special Counsel must file two 
copies of the complaint, together with numbered and tabbed exhibits or 
attachments, if any, and a certificate of service listing the 
respondent agency or the agency's representative, and each person on 
whose behalf the corrective action is brought. The certificate of 
service must show the last known address, telephone number, and 
facsimile number of the agency or its representative, and each person 
on whose behalf the corrective action is brought. The Special Counsel 
must serve a copy of the complaint on the agency or its representative, 
and each person on whose behalf the corrective action is brought, as 
shown on the certificate of service.
    (c) Subsequent filings and service. Each party must serve on every 
other

[[Page 48453]]

party or the party's representative one copy of each of its pleadings, 
as defined by Sec. 1201.4(b). A certificate of service describing how 
and when service was made must accompany each pleading. Each party is 
responsible for notifying the Board and the other parties in writing of 
any change in name, address, telephone number, or facsimile number of 
the party or the party's representative.
    (d) Method of filing and service. Filing may be by mail, by 
facsimile, by commercial overnight delivery, or by personal delivery to 
the office determined under paragraph (a) of this section. Service may 
be by mail, by facsimile, by commercial overnight delivery, or by 
personal delivery to each party or the party's representative, as shown 
on the certificate of service.


Sec. 1201.129  Contents of complaint.

    (a) If the Special Counsel determines that the Board should take 
action to require an agency to correct a prohibited personnel practice 
(or a pattern of prohibited personnel practices) under 5 U.S.C. 
1214(b)(4), he or she must file a written complaint in accordance with 
Sec. 1201.128 of this part, stating with particularity any alleged 
violations of law or regulation, along with the supporting facts.
    (b) If the Special Counsel files a corrective action with the Board 
on behalf of an employee, former employee, or applicant for employment 
who has sought corrective action from the Board directly under 5 U.S.C. 
1214(a)(3), the Special Counsel must provide evidence that the 
employee, former employee, or applicant has consented to the Special 
Counsel's seeking corrective action. 5 U.S.C. 1214(a)(4).
    (c) The judge to whom the complaint is assigned may order the 
Special Counsel and the respondent agency to file briefs, memoranda, or 
both in any corrective action complaint the Special Counsel brings 
before the Board.


Sec. 1201.130  Rights; answer to complaint.

    (a) Rights. (1) A person on whose behalf the Special Counsel brings 
a corrective action has a right to request intervention in the 
proceeding in accordance with the regulations in Sec. 1201.34 of this 
part. The Clerk of the Board shall notify each such person of this 
right.
    (2) When the Special Counsel files a complaint seeking corrective 
action, the judge to whom the complaint is assigned shall provide an 
opportunity for oral or written comments by the Special Counsel, the 
agency involved, and the Office of Personnel Management. 5 U.S.C. 
1214(b)(3)(A).
    (3) The judge to whom the complaint is assigned shall provide a 
person alleged to have been the subject of any prohibited personnel 
practice alleged in the complaint the opportunity to make written 
comments, regardless of whether that person has requested and been 
granted intervenor status. 5 U.S.C. 1214(b)(3)(B).
    (b) Filing and default. An agency named as respondent in a Special 
Counsel corrective action complaint may file an answer with the judge 
to whom the complaint is assigned within 35 days of the date of service 
of the complaint. If the agency fails to answer, the failure may 
constitute waiver of the right to contest the allegations in the 
complaint. Unanswered allegations may be considered admitted and may 
form the basis of the judge's decision.
    (c) Content. An answer must contain a specific denial, admission, 
or explanation of each fact alleged in the complaint. If the respondent 
agency has no knowledge of a fact, it must say so. The respondent may 
include statements of fact and appropriate documentation to support 
each denial or defense. Allegations that are unanswered or admitted in 
the answer may be considered true.


Sec. 1201.131  Judge.

    (a) The Board will assign a corrective action complaint brought by 
the Special Counsel to a judge, as defined at Sec. 1201.4(a) of this 
part, for hearing.
    (b) The judge will issue an initial decision on the complaint 
pursuant to 5 U.S.C. 557. The applicable provisions of Secs. 1201.111, 
1201.112, and 1201.113 of this part govern the issuance of initial 
decisions, the jurisdiction of the judge, and the finality of initial 
decisions. The initial decision will be subject to the procedures for a 
petition for review by the Board under subpart C of this part.


Sec. 1201.132  Final decisions.

    (a) In any Special Counsel complaint seeking corrective action 
based on an allegation that a prohibited personnel practice has been 
committed, the judge, or the Board on petition for review, may order 
appropriate corrective action. 5 U.S.C. 1214(b)(4)(A).
    (b) (1) Subject to the provisions of paragraph (b)(2) of this 
section, in any case involving an alleged prohibited personnel practice 
described in 5 U.S.C. 2302(b)(8), the judge, or the Board on petition 
for review, will order appropriate corrective action if the Special 
Counsel demonstrates that a disclosure described under 5 U.S.C. 
2302(b)(8) was a contributing factor in the personnel action that was 
taken or will be taken against the individual.
    (2) Corrective action under paragraph (b)(1) of this section may 
not be ordered if the agency demonstrates by clear and convincing 
evidence that it would have taken the same personnel action in the 
absence of such disclosure. 5 U.S.C. 1214(b)(4)(B).


Sec. 1201.133  Judicial review.

    An employee, former employee, or applicant for employment who is 
adversely affected by a final Board decision on a corrective action 
complaint brought by the Special Counsel may obtain judicial review of 
the decision in the United States Court of Appeals for the Federal 
Circuit. 5 U.S.C. 1214(c).

Special Counsel Requests for Stays


Sec. 1201.134  Deciding official; filing stay request; serving 
documents on parties.

    (a) Request to stay personnel action. Under 5 U.S.C. 1214(b)(1), 
the Special Counsel may seek to stay a personnel action if the Special 
Counsel determines that there are reasonable grounds to believe that 
the action was taken or will be taken as a result of a prohibited 
personnel practice.
    (b) Deciding official. Any member of the Board may delegate to an 
administrative law judge the authority to decide a Special Counsel 
request for an initial stay.
    (c) Place of filing. A Special Counsel stay request must be filed 
with the Clerk of the Board.
    (d) Initial filing and service. The Special Counsel must file two 
copies of the request, together with numbered and tabbed exhibits or 
attachments, if any, and a certificate of service listing the 
respondent agency or the agency's representative. The certificate of 
service must show the last known address, telephone number, and 
facsimile number of the agency or its representative. The Special 
Counsel must serve a copy of the request on the agency or its 
representative, as shown on the certificate of service.
    (e) Subsequent filings and service. Each party must serve on every 
other party or the party's representative one copy of each of its 
pleadings, as defined by Sec. 1201.4(b). A certificate of service 
describing how and when service was made must accompany each pleading. 
Each party is responsible for notifying the Board and the other parties 
in writing of any change in name, address, telephone number, or 
facsimile number of the party or the party's representative.
    (f) Method of filing and service. Filing may be by mail, by 
facsimile, by commercial overnight delivery, or by personal delivery to 
the Clerk of the Board. Service may be by mail, by

[[Page 48454]]

facsimile, by commercial overnight delivery, or by personal delivery to 
each party or the party's representative, as shown on the certificate 
of service.


Sec. 1201.135  Contents of stay request.

    The Special Counsel, or that official's representative, must sign 
each stay request, and must include the following information in the 
request:
    (a) The names of the parties;
    (b) The agency and officials involved;
    (c) The nature of the action to be stayed;
    (d) A concise statement of facts justifying the charge that the 
personnel action was or will be the result of a prohibited personnel 
practice; and
    (e) The laws or regulations that were violated, or that will be 
violated if the stay is not issued.


Sec. 1201.136  Action on stay request.

    (a) Initial stay. A Special Counsel request for an initial stay of 
45 days will be granted within three working days after the filing of 
the request, unless, under the facts and circumstances, the requested 
stay would not be appropriate. Unless the stay is denied within the 3-
day period, it is considered granted by operation of law.
    (b) Extension of stay. Upon the Special Counsel's request, a stay 
granted under 5 U.S.C. 1214(b)(1)(A) may be extended for an appropriate 
period of time, but only after providing the agency with an opportunity 
to comment on the request. The Special Counsel must file any request 
for an extension of a stay under 5 U.S.C. 1214(b)(1)(B) at least 15 
days before the expiration date of the stay. A brief describing the 
facts and any relevant legal authority that should be considered must 
accompany the request for extension. Any response by the agency must be 
filed within 10 days of the date of service of the Special Counsel's 
brief.
    (c) Evidence of compliance with a stay. Within five working days 
from the date of a stay order or an order extending a stay, the agency 
ordered to stay a personnel action must file evidence setting forth 
facts and circumstances demonstrating compliance with the order.
    (d) Termination of stay. A stay may be terminated at any time, 
except that a stay may not be terminated:
    (1) On the motion of an agency, or on the deciding official's own 
motion, without first providing notice and opportunity for oral or 
written comments to the Special Counsel and the individual on whose 
behalf the stay was ordered; or
    (2) On the motion of the Special Counsel without first providing 
notice and opportunity for oral or written comments to the individual 
on whose behalf the stay was ordered. 5 U.S.C. 1214(b)(1)(D).
    (e) Additional information. At any time, where appropriate, the 
Special Counsel, the agency, or both may be required to appear and 
present further information or explanation regarding a request for a 
stay, to file supplemental briefs or memoranda, or to supply factual 
information needed to make a decision regarding a stay.
Actions Against Administrative Law Judges


Sec. 1201.137  Covered actions; filing complaint; serving documents on 
parties.

    (a) Covered actions. The jurisdiction of the Board under 5 U.S.C. 
7521 and this subpart with respect to actions against administrative 
law judges is limited to proposals by an agency to take any of the 
following actions against an administrative law judge:
    (1) Removal;
    (2) Suspension;
    (3) Reduction in grade;
    (4) Reduction in pay; and
    (5) Furlough of 30 days or less.
    (b) Place of filing. To initiate an action against an 
administrative law judge under this subpart, an agency must file a 
complaint with the Clerk of the Board.
    (c) Initial filing and service. The agency must file two copies of 
the complaint, together with numbered and tabbed exhibits or 
attachments, if any, and a certificate of service listing each party or 
the party's representative.
    The certificate of service must show the last known address, 
telephone number, and facsimile number of each party or representative. 
The agency must serve a copy of the complaint on each party or the 
party's representative, as shown on the certificate of service.
    (d) Subsequent filings and service. Each party must serve on every 
other party or the party's representative one copy of each of its 
pleadings, as defined by Sec. 1201.4(b). A certificate of service 
describing how and when service was made must accompany each pleading. 
Each party is responsible for notifying the Board and the other parties 
in writing of any change in name, address, telephone number, or 
facsimile number of the party or the party's representative.
    (e) Method of filing and service. Filing may be by mail, by 
facsimile, by commercial overnight delivery, or by personal delivery to 
the Clerk of the Board. Service may be by mail, by facsimile, by 
commercial overnight delivery, or by personal delivery to each party or 
the party's representative, as shown on the certificate of service.


Sec. 1201.138  Contents of complaint.

    A complaint filed under this section must describe with 
particularity the facts that support the proposed agency action.


Sec. 1201.139  Rights; answer to complaint.

    (a) Responsibilities of Clerk of the Board. The Clerk of the Board 
shall furnish a copy of the applicable Board regulations to each 
administrative law judge named as a respondent in the complaint and 
shall inform each respondent of his or her rights under paragraph (b) 
of this section and the requirements regarding the timeliness and 
content of an answer to the agency's complaint under paragraphs (c) and 
(d), respectively, of this section.
    (b) Rights. When an agency files a complaint proposing an action 
against an administrative law judge under 5 U.S.C. 7521 and this 
subpart, the administrative law judge has the right:
    (1) To file an answer, supported by affidavits and documentary 
evidence;
    (2) To be represented;
    (3) To a hearing on the record before an administrative law judge;
    (4) To a written decision, issued at the earliest practicable date, 
in which the administrative law judge states the reasons for his or her 
decision; and
    (5) To a copy of the administrative law judge's decision and 
subsequent final decision by the Board, if any.
    (c) Filing and default. A respondent named in an agency complaint 
may file an answer with the Clerk of the Board within 35 days of the 
date of service of the complaint. If a respondent fails to answer, the 
failure may constitute waiver of the right to contest the allegations 
in the complaint. Unanswered allegations may be considered admitted and 
may form the basis of the administrative law judge's decision.
    (d) Content. An answer must contain a specific denial, admission, 
or explanation of each fact alleged in the complaint. If the respondent 
has no knowledge of a fact, he or she must say so. The respondent may 
include statements of fact and appropriate documentation to support 
each denial or defense. Allegations that are unanswered or admitted in 
the answer may be considered true.


Sec. 1201.140  Judge; requirement for finding of good cause.

    (a) Judge. (1) An administrative law judge will hear an action 
brought by an employing agency under this subpart against a respondent 
administrative law judge.
    (2) The judge will issue an initial decision pursuant to 5 U.S.C. 
557. The

[[Page 48455]]

applicable provisions of Secs. 1201.111, 1201.112, and 1201.113 of this 
part govern the issuance of initial decisions, the jurisdiction of the 
judge, and the finality of initial decisions. The initial decision will 
be subject to the procedures for a petition for review by the Board 
under subpart C of this part.
    (b) Requirement for finding of good cause. A decision on a proposed 
agency action under this subpart against an administrative law judge 
will authorize the agency to take a disciplinary action, and will 
specify the penalty to be imposed, only after a finding of good cause 
as required by 5 U.S.C. 7521 has been made.


Sec. 1201.141  Judicial review.

    An administrative law judge subject to a final Board decision 
authorizing a proposed agency action under 5 U.S.C. 7521 may obtain 
judicial review of the decision in the United States Court of Appeals 
for the Federal Circuit. 5 U.S.C. 7703.


Sec. 1201.142  Actions filed by administrative law judges.

    An administrative law judge who alleges that an agency has 
interfered with the judge's qualified decisional independence so as to 
constitute an unauthorized action under 5 U.S.C. 7521 may file a 
complaint with the Board under this subpart. The filing and service 
requirements of Sec. 1201.137 apply. Such complaints shall be 
adjudicated in the same manner as agency complaints under this subpart.

Removal From the Senior Executive Service


Sec. 1201.143  Right to hearing; filing complaint; serving documents on 
parties.

    (a) Right to hearing. If an agency proposes to remove a career 
appointee from the Senior Executive Service under 5 U.S.C. 3592(a) (2) 
and 5 CFR 359.502, and to place that employee in another civil service 
position, the appointee may request an informal hearing before an 
official designated by the Board. Under 5 CFR 359.502, the agency 
proposing the removal must provide the appointee 30 days advance notice 
and must advise the appointee of the right to request a hearing. If the 
appointee files the request at least 15 days before the effective date 
of the proposed removal, the request will be granted.
    (b) Place of filing. A request for an informal hearing under 
paragraph (a) of this section must be filed with the Clerk of the 
Board. After the request has been assigned to a judge, subsequent 
pleadings must be filed with the Board office where the judge is 
located.
    (c) Initial filing and service. The appointee must file two copies 
of the request, together with numbered and tabbed exhibits or 
attachments, if any, and a certificate of service listing the agency 
proposing the appointee's removal or the agency's representative. The 
certificate of service must show the last known address, telephone 
number, and facsimile number of the agency or its representative. The 
appointee must serve a copy of the request on the agency or its 
representative, as shown on the certificate of service.
    (d) Subsequent filings and service. Each party must serve on every 
other party or the party's representative one copy of each of its 
pleadings, as defined by Sec. 1201.4(b). A certificate of service 
describing how and when service was made must accompany each pleading. 
Each party is responsible for notifying the Board and the other parties 
in writing of any change in name, address, telephone number, or 
facsimile number of the party or the party's representative.
    (e) Method of filing and service. Filing may be by mail, by 
facsimile, by commercial overnight delivery, or by personal delivery to 
the office determined under paragraph (b) of this section. Service may 
be by mail, by facsimile, by commercial overnight delivery, or by 
personal delivery to each party or the party's representative, as shown 
on the certificate of service.


Sec. 1201.144  Hearing procedures; referring the record.

    (a) The official designated to hold an informal hearing requested 
by a career appointee whose removal from the Senior Executive Service 
has been proposed under 5 U.S.C. 3592(a)(2) and 5 CFR 359.502 will be a 
judge, as defined at Sec. 1201.4(a) of this part.
    (b) The appointee, the appointee's representative, or both may 
appear and present arguments in an informal hearing before the judge. A 
verbatim record of the proceeding will be made. The appointee has no 
other procedural rights before the judge or the Board.
    (c) The judge will refer a copy of the record to the Special 
Counsel, the Office of Personnel Management, and the employing agency 
for whatever action may be appropriate.


Sec. 1201.145  No appeal.

    There is no right under 5 U.S.C. 7703 to appeal the agency's action 
or any action by the judge or the Board in cases arising under 
Sec. 1201.143(a) of this part. The removal action will not be delayed 
as a result of the hearing.

Requests for Protective Orders


Sec. 1201.146  Requests for protective orders by the Special Counsel.

    (a) Under 5 U.S.C. 1204(e)(1)(B), the Board may issue any order 
that may be necessary to protect a witness or other individual from 
harassment during an investigation by the Special Counsel or during the 
pendency of any proceeding before the Board, except that an agency, 
other than the Office of the Special Counsel, may not request a 
protective order with respect to an investigation by the Special 
Counsel during such investigation.
    (b) Any motion by the Special Counsel requesting a protective order 
must include a concise statement of reasons justifying the motion, 
together with any relevant documentary evidence. Where the request is 
made in connection with a pending Special Counsel proceeding, the 
motion must be filed as early in the proceeding as practicable.
    (c) Where there is a pending Special Counsel proceeding, a Special 
Counsel motion requesting a protective order must be filed with the 
judge conducting the proceeding, and the judge will rule on the motion. 
Where there is no pending Special Counsel proceeding, a Special Counsel 
motion requesting a protective order must be filed with the Clerk of 
the Board, and the Board will designate a judge, as defined at 
Sec. 1201.4(a) of this part, to rule on the motion.


Sec. 1201.147  Requests for protective orders by persons other than the 
Special Counsel.

    Requests for protective orders by persons other than the Special 
Counsel in connection with pending original jurisdiction proceedings 
are governed by Sec. 1201.55(d) of this part.


Sec. 1201.148  Enforcement of protective orders.

    A protective order issued by a judge or the Board under this 
subpart may be enforced in the same manner as provided under subpart F 
of this part for Board final decisions and orders.

    Dated: September 10, 1997.
Robert E. Taylor,
Clerk of the Board.
[FR Doc. 97-24440 Filed 9-15-97; 8:45 am]
BILLING CODE 7400-01-U